Constantin v. Smith, 365.

• Citation: 57 F.2d 227
• Decision Date: 18 February 1932
• Docket Number: No. 365.,365.
• Parties: CONSTANTIN et al. v. SMITH et al.
• Court: U.S. District Court — Eastern District of Texas

57 F.2d 227 (1932)

CONSTANTIN et al. v. SMITH et al.

No. 365.

District Court, E. D. Texas, Tyler Division.

February 18, 1932.

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Bailey, Nickels & Bailey, of Dallas, Tex., for complainants.

Elbert Hooper and Fred Upchurch, Asst. Attys. Gen., for respondents Attorney General of Texas and Railroad Commission of Texas.

Paul D. Page, Jr., of Houston, Tex., and Dan Moody and E. F. Smith, both of Austin, Tex., for other respondents.

T. W. Gregory and Samuel B. Dabney, both of Houston, Tex., amici curiæ.

Before HUTCHESON, Circuit Judge, and GRUBB and BRYANT, District Judges.

HUTCHESON, Circuit Judge (after stating the issues and facts as above).

This suit, involving the exercise of the judicial power of the United States to restrain by injunction R. S. Sterling, W. W. Sterling, and Jacob F. Wolters, holding the offices respectively of Governor of the state of Texas, adjutant general, and brigadier general, from, under the claim of military necessity, limiting the production from plaintiffs' wells in the East Texas oil field where the Governor has declared martial law, presents, in a fundamental way, questions of executive and judicial power.

The case is one of wide interest and concern. It has been thoroughly and adequately briefed by counsel of distinction and ability. Our disposition of it has been greatly aided by the candor and excellence of the briefs filed. Plaintiffs' counsel have filed one brief, defendants' counsel two; one brief has been filed amicus curiæ in support of, one against, the martial law jurisdiction asserted. The arguments, as befits the subject, have taken wide range; in the grand manner they have discussed the great themes of liberty under law, separation of powers, the rights of man, the sovereign powers of states, the Federal Constitution as the supreme law of the land. Plaintiffs' brief reciting a tale of ancient wrongs at the hands of tyrannous executives professes to see in the actions and purposes of defendants here despotism and tyranny walking again to perpetrate old outrages under new pretenses. Both plaintiffs and defendants conjure here the specter of usurpation of powers, judicial and executive. We do not start at such specter conjuring on either side. The judicial branch has neither purse, nor sword, nor ministers to execute its will. Its decrees take their force alone from the purity and the justness of its judgments; while the executive in our time, though strong in theory, is of all men most bound to show a decent respect to the opinions of mankind, and may not ever be any stronger than the gathered force of public opinion.

It is entirely evident, however, that, unless we keep firmly in mind that this is a cause in court involving real rights, and real issues, in which the judgment must be, not what one wills, but what one must, not a philosophical debate in which the judges may decide not what is, but what ought to be, the temptation to match forensic with judicial opinion will not only make this opinion overlong, but will add to the already too long list of so-called martial law opinions, most of them the bitter fruit of industrial passion, still another one so concerned with general principles that it says far more than it decides. Courts of equity should and must decide cases as private, not as public, as real, not as abstract, controversies, and determine them accordingly. California v. San Pablo & T. R. Co., 149 U. S. 308, 13 S. Ct. 876, 37 L. Ed. 747; Mills v. Green, 159 U. S. 654, 16 S. Ct. 132, 40 L. Ed. 293; United States v. Hamburg, 239 U. S. 475, 36 S. Ct. 212, 60 L. Ed. 387.

We turn then to a consideration of this case, as it is, a private controversy in which plaintiffs, complaining of the illegal deprivation of their property, invoke the chancery powers of this court to prevent it.

We examine the questions propounded and the authorities cited in the light, not of abstractions, but of the case before us, first premising what the case is not; then what it is.

Stripped of the involvement with which its contentions course has invested it, and considered as it now presents itself for decision, it is not a proceeding for habeas corpus, as Re Milligan, 4 Wall. 2, 18 L. Ed. 281, was, nor one under 28 USCA § 41, subd. 14, section 24 (14) of the Judicial Code, to redress the deprivation of civil rights, as were the federal cases of Moyer v. Peabody (C. C.) 148 F. 870; Id., 212 U. S. 78, 29 S. Ct. 235, 53 L. Ed. 410; United States v. Wolters (D. C.) 268 F. 69; United States v. Fischer (D. C.) 280 F. 208; United States v. Adams (D. C.) 26 F.(2d) 141; nor is it a petition for writ of habeas corpus, as were Commonwealth v. Shortall, 206 Pa. 165, 55 A. 952, 65 L. R. A. 193, 98 Am. St. Rep. 759; In re Moyer, 35 Colo. 159, 85 P. 190, 12 L. R. A. (N. S.) 979, 117 Am. St. Rep. 189; Ex parte Lavinder, 88 W. Va. 713, 108 S. E. 428, 24 A. L. R. 1178; In re Boyle, 6 Idaho, 609, 57 P. 706, 45 L. R. A. 832, 96 Am. St. Rep. 286; Ex parte Jones, 71 W. Va. 567, 77 S. E. 1029, 45 L. R. A. (N. S.) 1030-1058, Ann. Cas. 1914C, 31; State ex rel. Mays v. Brown, 71 W. Va. 519, 77 S. E. 243, 45 L. R. A. (N. S.) 997, Ann. Cas. 1914C, 1; Ex parte McDonald, 49 Mont. 454, 143 P. 947, L. R. A. 1915B, 998, Ann. Cas. 1916A, 1166. It is not a suit for damages, as were Herlihy v. Donohue, 52 Mont. 601, 161 P. 164, L. R. A. 1917B, 702, Ann. Cas. 1917C, 29; Bishop v. Vandercook, 228 Mich. 299, 200 N. W. 278; Mitchell v. Harmony, 13 How. 115, 14 L. Ed. 75; Franks v. Smith, 142 Ky. 232, 134 S. W. 484, L. R. A. 1915A, 1141, Ann. Cas. 1912D, 319; Luther v. Borden, 7 How. 1, 12 L. Ed. 581; Allen v. Gardner, 182 N. C. 425, 109 S. E. 260, 261. It is not a case like Martin v. Mott, 12 Wheat. 19, 6 L. Ed. 537; Chapin v. Ferry, 3 Wash. 386, 28 P. 754, 15 L. R. A. 116; Sweeney v. Commonwealth, 118 Ky. 912, 82 S. W. 639, involving solely the question of the right in one case of the President, in the others of the Governor, to call troops out. Nor is it even, so far as this three-judge court is concerned with it, a contempt case, like Fluke v. Canton, 31 Okl. 718, 123 P. 1049, for the disobedience of an injunction. It is not a case like Hartranft's Appeal, 85 Pa. 433, 27 Am. Rep. 667, of an effort of a state grand jury to prosecute an inquiry into the public actions of the Governor in using military force to suppress an insurrection. Nor does the case in any manner involve a general inquiry into or an effort to restrain the general power of the Governor to call out troops or to take such actions generally with them as he may see fit. The case involves merely the right of a citizen to relief against acts in deprivation of his property, and the questions of martial law and the power of the Governor come up as incidental to the inquiry, and are drawn into it and affected by it only in so far as it is necessary to settle that inquiry.

It is perfectly clear that, unless the defendants can maintain their proposition, that they are ad hoc the state, and therefore may not be sued, or that the declaration of martial law has superseded the Federal Constitution as the supreme law of the land, and during the time of its fiat continuance placed defendants above accountability to the courts, plaintiffs are entitled to equitable relief, for no clearer case of deprivation of rights inhering in private ownership of property under color of law can be imagined than is here occurring. It could not be, it is not contended that, under ordinary conditions, that is, martial law absent, a Governor and the militia could expropriate the management of private property, as they are now doing. It remains only to inquire whether the defendants because of the proclamations find themselves so situated as that a court of the United States may not exert its jurisdiction upon complaint against their actions to inquire into them, or, if it may, may not, under the undisputed facts obtaining, grant relief.

Looking first to defendants' contentions, we think it might reasonably be expected that, in support of pretensions so vast, of authority so absolute and uncontrolled as here asserted, of power in the executive of a state by fiat to suspend, not only the Constitution of the state, but of the United States, to the extent of depriving their courts of jurisdiction to inquire into and redress grievances, defendants would point to enabling constitutional provisions, state or national, or at least clear and convincing authority supporting their claim.

We have examined the constitutional provisions which they rely on. We have examined every authority cited by them. We have found none, we conclude that none exists which, as against the claim of deprivation of property, supports defendants' claim to immunity from judicial inquiry, and none which has even considered, much less declared, that a court of the United States may not, by injunction, prevent the deprivation of property such as is here occurring.

Upon the first proposition advanced, that this is a suit against the state, and that as such it may not be maintained, the authorities overwhelm that this is a suit under the first subdivision of section 41, 28 USCA, section 24, subd. 1 of the Judicial Code, to redress the deprivation of property arising under the Constitution and laws of the United States (Holt v. Indiana Mfg. Co., 176 U. S. 70, 20 S. Ct. 272, 44 L. Ed. 374) and that as such it is not a suit against the state, but against persons in their individual capacities, to prevent them from enforcing statutes in themselves unconstitutional, or unconstitutional as attempted to be enforced and applied. That in such a suit, when it is found, that "an individual, acting under the assumed authority of a state, as one of its officers, and under color of its laws, comes into conflict with the superior authority of a valid law of the United States, he is stripped...